The California congressman wants the Eighth Circuit to reverse an Iowa federal judge’s dismissal of his suit over an Esquire article about his family’s dairy farm.
(CN) — U.S. Representative Devin Nunes urged a federal appeals court Wednesday to reverse an Iowa district court’s dismissal of his libel lawsuit against Esquire magazine over what he calls a “hit job” by journalist Ryan Lizza.
In a complaint filed in Sioux City federal court in 2019, Nunes, a Republican who has represented California’s 22nd Congressional District since 2003, accused Lizza and Esquire of publishing false and defamatory statements about him. Specifically, he claimed a 2018 article defamed him by saying he was hiding a “politically explosive secret” involving his family’s dairy farm in northwest Iowa.
The congressman asked for $75 million in compensatory damages and $2.5 million in punitive damages. The Nunes family filed a separate suit in Iowa federal court in 2020 making similar claims on behalf of the congressman’s father and brothers. The trial judge dismissed all but one of the Nunes family’s claims in September 2020 except one alleging the defendants defamed them by falsely stating that they knowingly employed undocumented workers. A trial on that issue is scheduled for February 2022.
In dismissing all of Nunes’ claims, U.S. District Judge C.J. Williams wrote that the allegedly defamatory statements in the Esquire article were admittedly true, opinion, did not directly concern Nunes or were protected by the First Amendment.
However, the Donald Trump-appointed judge denied Esquire’s and Lizza’s motion to apply the California Anti-SLAPP statute, which allows defendants to file a special motion to attack defamation suits aimed at chilling free speech. Williams said the California statute is preempted by the Federal Rules of Civil Procedure.
Nunes claimed the September 2018 Esquire story, headlined “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” was filled with errors. The complaint, which repeatedly referred to the article as “the Lizza hit piece,” called it a “legion of lies” that “falsely states or implies that plaintiff owned an interest in his family’s farm in Sibley, Iowa, and that plaintiff was involved in hiding a ‘politically explosive secret.’”
The article questioned why the Nuneses and others would “conspire to hide the fact” that the family had sold its farm in California and moved to Iowa. Lizza, who is now Politico’s chief Washington correspondent, also described being followed by members of Nunes’ family and says two sources told him that the dairy — called NuStar Farms — relied partly upon undocumented labor.
Arguing before an Eighth Circuit panel Wednesday, Nunes’ lawyer, Steven Biss of Charlottesville, Virginia, said the article contained defamatory implications that constitute actual malice. He said the intent of the article was to interfere with the 2018 congressional election.
The article, he told the court, “accuses Congressman Nunes of conspiring with his family and with another congressman to conceal a politically explosive secret. The court ought to focus on the exact words that Mr. Lizza used because they were intentional.”
He continued, “Mr. Lizza intended to convey the meaning that Congressman Nunes conspired with his family and [former Iowa] Representative [Steve] King to conceal a politically explosive secret. And that secret was that Congressman Nunes’ family . . . used unauthorized labor. That’s the only way this article can be interpreted because the article would have no meaning otherwise.”
Hearst Corp. attorney Jonathan Donnellan, counsel for Lizza and Esquire, told the judges the lower court correctly dismissed the congressman’s suit because publications that involve “criticisms of the motives and intentions of public officials” in particular deserve protection under the First Amendment.
U.S. Circuit Judge Steven Colloton, a George W. Bush appointee, pressed Donnellan about the implication of the article.
“What about the alleged implication that the congressman was trying to keep secret the Iowa farm because of the use of undocumented labor,” Colloton asked. “Is that an implication of the article?”
Donnellan replied, “Your honor, I don’t think that’s a reasonable implication. The standard here is what an objectively reasonable reader would draw from” the article.
“But what about the paragraph later, which says that one reason they might be so secretive is that farms tend to run on undocumented labor,” Colloton asked.
In response, Donnellan said that by that point in the article it should be clear that the story is a discussion of Nunes’ parents and brother.
“There is no statement whatsoever concerning Representative Nunes there,” he said. “There is no way that even if one could draw that implication that it could be of or concerning Representative Nunes.”
Colloton was joined on the panel by U.S. Circuit Judges Lavenski Smith, a George W. Bush appointee, and Ralph Erickson, a Trump appointee. The judges did not indicate when they would rule.
Attorneys for both parties did not respond to requests for comment following Wednesday’s hearing.